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Explainer: What You Should Know About the Born-Alive Abortion Survivors Protection Act

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What just happened?

Last week a Virginia lawmaker and the state’s governor garnered national attention because of their support for a bill that would allow late-term abortions for mental-health reasons up until the moment of birth. This prompted Nebraska Sen. Ben Sasse to fast-track the Born-Alive Abortion Survivors Protection Act, a bill he reintroduced earlier this month to protect newborns from infanticidal neglect. On Monday he called for unanimous consent to the bill.

“We are actually talking about babies that have been born. The only debate on the floor tonight is about infanticide. . . . This is about fourth-trimester abortion,” Sasse said on the Senate floor. “Everyone in this Senate ought to be able to say that the little baby deserves life, that she has rights, and that killing her is wrong.”

The unanimous consent vote failed, though, when Sen. Patty Murray (D-WA) objected to the bill. Murray incorrectly claimed (see below) that the legislation is unnecessary because there are already legal prohibitions on infanticide.

What is the Born-Alive Abortion Survivors Protection Act?

The Born-Alive Abortion Survivors Protection Act (hereafter Born-Alive Act) is a bill, first submitted in 2017 and recently reintroduced by several Republican senators, that would protect infants born after a botched abortion.

According to the bill, if an abortion results in the live birth of an infant, the infant is a legal person for all purposes under the laws of the United States, and entitled to all the protections of such laws. The bill also states that any infant born alive after an abortion or within a hospital, clinic, or other facility has the same claim to the protection of the law that would arise for any newborn, or for any person who comes to a hospital, clinic, or other facility for screening and treatment or otherwise becomes a patient within its care.

The Born-Alive Act would amend the federal criminal code to require any health-care practitioner who is present when a child is born alive following an abortion or attempted abortion to (1) exercise the same degree of care as reasonably provided to any other child born alive at the same gestational age, and (2) ensure that such child is immediately admitted to a hospital.

Additionally, a health-care practitioner or other employee who has knowledge of a failure to comply with these requirements would be required to immediately report such failure to an appropriate law enforcement agency.

The House version of the bill was introduced by Rep. Marsha Blackburn (R-TN), and has 131 co-sponsors, including one Democrat, Rep. Dan Lipinski (D-IL). That version passed last year by a vote of 241 to 183.

What does the term “born-alive” mean in this legislation?

The term “born alive” means the complete expulsion or extraction (of the child) from his or her mother, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut.

How many children are born-alive after a botched abortion?

The Centers for Disease Control (CDC) statistics show that between 2003 and 2014, at least 143 infant deaths “could definitively be classified as involving an induced termination.” The CDC also states “it is possible that this number (143) underestimates the total number of deaths involving induced termination.”

What would be the penalties for failing to obey this law?

Failure by a health-care practitioner to follow the care and reporting requirements would result in a criminal fine, up to five years in prison, or both. An individual who commits an overt act that kills a child born alive would be subject to criminal prosecution for murder.

Would the mother be charged with a crime?

No. The bill prohibits the criminal prosecution of a mother of a child born alive for conspiracy to violate these provisions, for being an accessory after the fact, or for concealment of felony.

Additionally, a woman who undergoes an abortion or attempted abortion would be able to file a civil action for damages against an individual who violates this bill.

Isn’t it already illegal to allow a child born alive after a botched abortion to die?

No. As Alexandra DeSanctis notes, only about half the states (26) have laws creating a specific affirmative duty for physicians to provide medical care to infants born in botched abortions. She also points out that as of 2016, only six states required that abortion providers report instances of infants born alive under such circumstances.

“In New York, a born-alive protection was on the books, but the state’s recent abortion expansion removed it,” DeSanctis says. “The new Virginia bill would downgrade the requirement that doctors provide care to newborn infants from a ‘must’ to a ‘shall’ standard, a legally significant distinction.”

Does anyone actually oppose this legislation?

Yes, almost all Democrats in Congress oppose this legislation and are expected to vote against it. When the U.S. House voted on similar legislation on last year, 183 of 189 of Democrats (97 percent) voted against it. (And one of the six who voted for the bill said he had done so by accident.) Senate Democrats are also expected to oppose the bill when it comes up again in the near future for a roll call vote.

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